Janene Oleaga, Esq.
This week an Oklahoma District Court Judge granted a sperm donor rights to the child conceived from his donated sperm. This sets scary precent for many LGBTQ parents and all parents of children conceived through assisted reproduction.
Let's take a quick look at the mostly undisputed facts surrounding this case:
FD-2021-3681 Wilson v. Williams; FP-22-44 Vaughn v. Wilson.
According to Kris Williams, she and her girlfriend, Rebekah Wilson, desired to have a child together.
Rebekah and Kris match with Harlan Vaughan on a website that matches prospective sperm donors with prospective recipient parents.
Harlan signs a sperm donation agreement with Rebekah alone in September 2018. \
A few months later, Harlan provides sperm directly to Rebekah to conceive through at-home artificial insemination. Rebekah conceives as planned.
The following summer, Rebekah marries her wife, Kris Williams. Rebekah is 6 months pregnant at their wedding.
Later that summer, Rebekah gives birth to a baby boy - let's call him BB. Kris participated in the birth and both Rebekah and Kris are indicated as BB's parents on his birth certificate. BB was given Kris' last name!
For about 2 years, Rebekah and Kris live as a married couple. They both act as parents to BB during this time. Harlan is also involved in the child's life, though not as a primary caretaker.
Rebekah and Kris' marriage breaks down, and they separate in 2021 amid domestic abuse allegations.
Shortly thereafter, Rebekah moves herself and BB in with Harlan. Rebekah argues Kris is not BB's legal parent.
Harlan files a petition to adjudicate his paternity. In his petition, Harlan asks the court to declare he is the legal parent of BB.
May of 2022 Oklahoma District Judge Lynne McGuire orders Kris be removed as a parent on BB's birth certificate.
This week, Judge McGuire ruled that because Kris failed to adopt BB she forfeited her parentage, stripping Kris of any rights to BB.
Read the decision here.
The specific provision of this decision that all non-bio parents need to be aware of is the following: “The reality is that the law provides a legal remedy available to Williams.... She knowingly chose not to pursue it.”
The "legal remedy" Judge McGuire is referring to is a stepparent or second parent adoption.
Completing a Stepparent Adoption, Second Parent Adoption, or Obtaining a Judgment of Parentage.
I agree, it isn't fair that non-bio or non-gestating parents in same-sex couples need to adopt their own child. Let's change the laws. But in the meantime, let's complete second parent adoptions, stepparent adoptions, or judgments of parentage in states that offer such simplified paths to obtaining orders of parentage.
What's the difference?
Judgment of Parentage: In some states, including New York, there is a simplified court process in which parents of children conceived through assisted reproduction can obtain a judgment declaring their legal parentage without going through a more lengthy adoption process. Instead of adopting your own child you are requesting the court declare what you already know to be true: that you are the parent of your child conceived through assisted reproduction. For more information about judgments of parentage: What is a Judgment of Parentage?
Stepparent Adoption: A stepparent adoption process is available in many states to allow for an individual to become a legal parent of their spouse's child. In some states, including Maine, this process involves completing pleadings, filing them with the court, and attending a hearing. Some states require a home study while other states allow couples to bypass this step for parents of children conceived through assisted reproduction. For more information about stepparent adoptions and how they compare watch: Protecting Your Family: Second Parent Adoptions, Stepparent Adoptions, and Judgments of Parentage
Second Parent Adoptions: A second parent adoption process is the same as its stepparent counterpart, except that it applies to unmarried couples. More information about second parent adoptions: Oleaga Law LLC: Second Parent Adoptions
Why is the birth certificate not enough?
Well, first of all, birth certificates can be amended, as we see in the case above. Birth certificates are administrative documents - not court orders. While court orders are entitled to full faith and credit among the 50 states, administrative documents do not possess this same protection.
Ultimately, birth certificates alone are not sufficient to bestow parental rights. If you are parents of a child or children born through assisted reproduction, and especially if you are an LGBTQ couple, additional steps must be taken to secure your parental rights.
For so long as we live in a world where we have states like Oklahoma, and judges that have no qualms about stripping LGBTQ individuals of their parental rights, we need to insist on protecting LGBTQ families through the judicial processes available to us.
We should all be concerned.