Parenthood can be difficult. But what about who exactly is a child’s parent? That should be easy, right? The parent either gave birth to the child, is genetically related to the child, is married to the person who gave birth to the child, or adopted the child. Oh wait, or if they held up as parents for the child, as we’ll see today. Hmm Okay, maybe it’s not that easy.
Courts are increasingly recognizing that families take many forms. These forms often include unmarried people and blurry lines about who exactly a parent is. The Kansas Supreme Court recently picked up such a case but chose to avoid ruling on the intricate facts and instead remitted the case for retrial in accordance with state law. Every parent and potential parent, especially those in same-sex relationships in Kansas, should be careful.
The case. On November 6, 2020, the Kansas Supreme Court issued its decision on the matter of ancestry from MF. Although there was conflicting evidence for the facts, two women were in a relationship. During the relationship, the woman who carried and gave birth to the child was inseminated intrauterine with donor sperm in order to become pregnant. She successfully fathered and given birth to a child. When the relationship with her significant other later ended, the woman married a man. At that time, the former partner brought an action for recognition as the child’s parent.
Mixed evidence. The facts about the intentions of these two women are heavily disputed. The eminent other argued that she did indeed want a child, but the parties argued whether it was ever intended that she should be the child’s parent and whether she had ever prevailed or acted as parents. The significant other person provided evidence of their role as parents, including their presence in the insemination process and a shared baby shower for both women. Other evidence, however, painted a different picture: that of the woman who carried and gave birth to the child, who did all or substantially all of the parenting work, and the significant other who provided little or no financial assistance to the child.
The court and the appeals court both ruled in favor of the birth mother and found that the significant other was not a parent of the child. The appellate court justified this on the grounds that the couple had neither a written nor an unwritten parental agreement and that there did not appear to be any “disagreement” between the couple when it came to understanding their significant other as a parent.
Reversed. In a U-turn, the Kansas Supreme Court overturned the District Court and Appeals Court rulings and sent the case back to the District Court to re-evaluate the matter with specific instructions. These instructions are important to anyone in Kansas who has a child – LGBTQ + or not – while in a relationship where it is not entirely clear that their partner should be their child’s parent forever and ever.
Manual. First, the court found that Kansas law did not require a parenting agreement, whether written or unwritten, to establish a parent-child relationship.
Second, the court found that the parent in question only had to show that he “notoriously acknowledges[d]Your maternity / paternity of the child by a preponderance of evidence (a fairly low standard), then shifting the burden on the other parent to refute the presumption of this parent-child relationship with clear and convincing evidence. (This is a very high standard!)
The Sunflower State Supreme Court has specifically set the appeals court’s flawed characterization of the standard “notoriously recognized” to include “open and notorious demonstrations of parenting” or “open and notorious assumption of responsibility for parenting.” Those weren’t the right standards, the court said. In particular, however, the decision that a court must only determine that the parents notoriously recognized their parental status at birth does not require any follow-up or actual parenting.
Once given, consent cannot be withdrawn.
In good news, for parents concerned that anyone in the world may notoriously acknowledge being the parent of someone else’s child, the Kansas Supreme Court has applied a different standard that is not in Kansas law, but rather on the precedent of the US Constitution in a case called Troxel. The Kansas Supreme Court argued that it was imperative that the woman who carried and gave birth primarily consent to the significant other’s parent-child relationship. But once that consent was given, it gave the significant other an equal and equal right to parenting. And once that happened, there would be no more setbacks. In other words, if you consent to your partner being the parent of your child at the time of the child’s birth, and the partner notoriously acknowledges that they are a parent, you cannot withdraw that consent or revoke that right. Even if that partner turns out to be a terrible parent or person. Maybe both!
I had the opportunity to speak with Kansas-assisted reproductive technology attorney Christina Miller about the case. Miller summed up the 46-page verdict succinctly with five key takeaways:
When assisted reproductive technologies are used to conceive a child, Kansas parenting laws are the appropriate parenting laws, not state adoption laws. Parenting laws in Kansas are now clearly gender neutral and apply to married and unmarried couples alike, regardless of whether the couple is same-sex or same-sex. Written coparenting agreements are best for showing parents intent, but are not required. The court will consider the couple’s intention to act together at the time of birth to determine whether the unborn / non-biological parent has parental rights. If the unborn parent shows mutual consent and acceptance / notice from the parents when the child is born, the unborn parent is entitled to a presumption of parentage.
Of course, while Miller didn’t include number six, it’s important to speak to a lawyer like Miller before you find yourself in this situation.
Ellen Trachman is the managing director of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-hosted the podcast I want to put a baby inside you. You can reach them at [email protected].