The Precarious Path to Parenthood for Same-Sex Couples

The journey to parenthood for same-sex couples is quite precarious. Sometimes the couples choose to adopt. At other times, they chose to have one of them become a biological parent to their child or children through a sperm donor or a surrogate mother for a gay couple.

Historically, when a marriage where one parent is a biological child ends, the party that doesn't have a biological connection with the child would easily find themselves locked out of the child's life if the parent with a biological link so wished. Even the domestic relations court did not offer much of a reprieve. 

Changing Times

But times are changing, and a recent ruling by a Texas court is a testament to this. The El Paso Court Of Appeals ruling involved a same-sex couple, Andrea and Cristina, who legally married in New Mexico in 2013 before moving to Texas. At the time of their marriage, same-sex marriage was still illegal in Texas and only became legal in 2016 after the US Supreme Court ruling on the Obergefell v. Hodges case. 

Instead of going through the expensive IVF procedure that involves paying a professional, the couple purchased an insemination kit and used sperm donated by their family friend Luis to impregnate Andrea. Christina was at Andrea's side during the pregnancy and delivery. 

When the child was finally born, Andrea informed the hospital staff that they were both parents, but Christina's name could not be entered in the records as a parent because same-sex marriages were not recognized under the law in Texas. 

The Separation

After their separation, Andrea moved out of the family home with the child. Christina paid child support to Andrea, with both mutually agreeing to raise the child together, with each parent spending equal time with the child. Unfortunately, 

Christina suffered from depression and was later diagnosed with cancer after the separation. In 2016, Andrea filed for divorce and stated that their marriage had no children. Still, the two continued sharing parental roles and custody until 2017, when Andrea decided to keep the child from Christina, citing her physical health and mental illness. 

In retaliation, Christina filed a Suit Affecting the Parent-Child Relationship (SAPCR), arguing that she had parental rights to the child. The case dragged on for months in court and ended up with the court ruling against Christina. 

The Appeals Court Ruling

Following the ruling, Christina filed an appeal with the Texas Court Of Appeals, claiming the court failed to extend to her the same rights extended to same-sex couples in a separation. On her part, Andrea argued that Christina could be considered a parent under the gender-specific Texan family law since her claim was based on the grounds of having spent time with the child only. 

However, the court ruled that a woman can become a mother to a child in more ways than one; birth, adjudication, and adoption giving Christina standing as a parent. 

It Is a New Precedence

“This ruling sets precedent not only in Texas but other jurisdictions across the US. It is a ray of hope for parents locked out of their children's lives based on not having a biological link,” says attorney Matt Towson of Towson Law Firm, PLLC. 

Even with this landmark ruling, the road is not yet smooth sailing. Many more obstacles must be cleared before parenthood for same-sex couples enjoys the same privileges as heterosexual couples, so you always have to get yourself the best legal counsel you can find when navigating such legal challenges.