In Oregon, a spouse who consents to artificial insemination of his or her wife is deemed a parent of the child. During the period before the establishment of single-sex marriage in Oregon, the rights of same-sex partners were partially unresolved. In 2009, the Oregon Court of Appeals ruled that the state constitution required recognizing the partners as parents because they had no legal means of establishing a state-recognized relationship. Subsequently, the legislature enacted a domestic partnership law that gave single-sex couples the right to a relationship analogous to marriage. Although not many couples took advantage of that law, some did, and the Court of Appeals recently confirmed that they, too, may have parental rights.
Two women held a commitment ceremony and later had a child by artificial insemination. They later changed their last names to match each other and purchased a business. On the other hand, they also both expressed, prior to the domestic partnership law, disinterest in marriage as an institution and listed only the one who bore the child as a parent on the birth certificate. When Oregon passed the domestic partnership law, the women registered their partnership, even though the relationship was deteriorating at the time. Eventually, the partnership was legally dissolved in a proceeding parallel to divorce.
The woman who had not borne the child sought to be declared the child’s second parent and be allowed visitation as a parent. She testified that had single-sex marriage been legal in Oregon at the time, they would have married. The trial judge ruled, before trial, that the evidence could only indicate that she should be ruled a parent, but the Court of Appeals decided the proper legal rule required a more detailed review of the evidence.
The Court of Appeals ruled that, for couples who had registered a domestic partnership, both partners should be considered parents if they would have married at the time the child was born. It reasoned that until single-sex marriage was allowed, same-sex couples could not legally choose to be married, but domestic partnerships allowed them a similar choice. The court created a long list of factors to consider, including whether they married or entered into a domestic partnership after the child was born, commitment ceremonies, exchange of rings, change of names, commingling of finances, joint financial decisions, adoption of each other’s other children, and unsuccessful attempts to marry before recognition of single-sex marriage.
In reviewing the facts, the Court of Appeals decided that there was evidence pointing both ways as to whether the women would have chosen to marry, and sent the case back for trial without making a final determination.
The Court of Appeals’ decision has advantages and disadvantages. It leaves open the question of parental rights to all single-sex couples, not only the few who took advantage of the domestic partnership law. On the other hand, it requires a difficult inquiry to determine whether those couples would have married. It also may effectively push the question of choice to marry back to apply to cases from before the domestic partnership law, resulting in uncertainty to couples and children who might have thought their rights were more secure. If you were in a same-sex relationship, and one partner had a child by artificial insemination, but you can’t agree whether both partners should be legal parents, it may be worthwhile to talk to a lawyer about how to resolve this question. Bringing as much information about the factors described above probably would be helpful.