Presumption of Parentage

A pivotal case impacting LGBTQIA+ assisted reproduction is currently before the Supreme Court of Oklahoma. In the years since SCOTUS ruled that the fundamental right to marry is guaranteed to same-sex couples, gaps in state frameworks—which were developed well before SCOTUS recognized this fundamental right—have caused complicated legal issues related to parental rights and reproduction. Navigating the labyrinth of fundamental rights and bioethical concerns has become such a challenge that independent think tanks provide state-by-state compendia and checklists detailing overviews of statutes and rights. Against this backdrop, Oklahoma is set to decide the parental rights of “a birth mother’s female spouse . . . based upon the parties’ marriage under Oklahoma law . . . [.]”

Oklahoma enacted its Uniform Parentage Act (“UPA”) in 2006. Within the UPA’s Article governing the parent-child relationship, there exists a presumption of paternity for a man who marries the mother of the child prior to the child’s birth, or where

1. He and the mother of the child were married to each other, and the child is born within three hundred (300) days after the marriage is terminated . . . ;
2. Before the birth of the child, he and the mother of the child married each other in apparent compliance with law [even if invalid]. . . and the child is born during the invalid marriage or within three hundred (300) days after its termination . . . ;
3. After the birth of the child, he and the mother of the child married each other in apparent compliance with law, whether or not the marriage is or could be declared invalid, and he voluntarily asserted his paternity of the child, and:
   1. the assertion is in a record with the State Department of Health, Division of Vital Records or the Department of Human Services,
   2. he agreed to be and is named as the child’s father on the child’s birth certificate, or
   3. he promised in a record to support the child as his own; or
4. For the first two (2) years of the child’s life, he resided in the same household with the child and openly held out the child as his own.

Notably absent from the UPA is any provision regarding a presumption of parentage for those in a same-sex marriage. In addition, there are no measures to establish a parent-child relationship when conception results from artificial insemination. As such, many partners in LGBTQIA+ relationships or same-sex marriages must complete second-parent adoption in Oklahoma in order to secure the parental rights automatically afforded to same-sex couples.

In the case currently pending before the Oklahoma Supreme Court, the appellant did not complete a second-parent adoption and now faces doubt as to her parental rights. Kristina Lea Williams is appealing a 2023 trial court decision in a divorce action filed by Rebekah Kay Wilson determining that Willaims is not the legal parent of the child born to her ex-wife, Wilson, despite years of co-parenting and the title of “Second Mother” on the birth certificate.

The Oklahoma County District Court determined that the sperm donor, Jeremy Harlan Vaughn, is the child’s legal parent. In the divorce proceeding, Vaughn intervened and challenged Williams’s argument that she and Wilson sought to decide the standards for building “their queer family.” In a March 1, 2023, Journal Entry on the mid-November 2022 trial on parentage, the Court issued Findings of Fact regarding the case. The Court found that (1) on September 28, 2019, Wilson, then unmarried, and Vaughn entered into a “Known Sperm Donor and Recipient Agreement” which neither party believed to be valid and which did not include Williams, (2) Wilson became pregnant following December 2018 non-medical insemination with Vaughn’s sperm, (3) Williams and Wilson legally married prior to the birth of the child, (4) the minor child was given Williams’s surname, (5) Wilson filed for a protective order against Williams and moved in with Vaughn in November 2021, (6) Vaughn filed a Petition for Adjudication of Paternity on January 18, 2022, alleging that he was the child’s biological father and that no second-parent adoption was filed after the child’s birth and (7) Williams never attempted to adopt the child.

In its reasoning, the trial court found the UPA and Oklahoma stare decisis governed the issue. However, Oklahoma’s UPA was enacted in 2006, nearly a decade before SCOTUS decided Obergefell. As such, the UPA does not even address or consider artificial insemination, much less same-sex couples or LGBTQIA+ reproduction at large. The lack of authority in the UPA on the potential conflict between biological and non-biological LGBTQIA+ co-parenting is problematic.

To make matters more complicated, there was a line of Oklahoma cases in the post-UPA, pre-Obergefell era that applied the long-recognized principle of in loco parentis to same-sex parents, stating that “when persons assume the status and obligations of a parent without formal adoption they stand in loco parentis to the child and, as such, may be awarded custody even against the biological parent.”

Although the trial court determined that it lacked textual context from the UPA on how to proceed. considering Williams’s position that her marriage to Wilson should establish her parental rights in light of her status as the “Second Mother,” the Court drew upon the Oklahoma Supreme Court’s decision in Guzman v. Guzman and determined that Oklahoma’s pre-Obergefell cases only applied to same-sex couples who did not have the right to legally marry—not to legally married couples like Williams and Wilson. Based on this ruling, Williams is asking the Supreme Court of Oklahoma to determine that Oklahoma’s UPA is withholding benefits of marriage to LGBTQIA+ persons that are extended to different-sex couples.

The implications of the impending ruling remain significant, not just for purposes of parental rights. The ruling will also impact the world of estate litigation and pretermitted heirs, especially as genetic testing becomes more prevalent with the popularity of test kits like 23andMe and Ancestry. Given the numerous shortfalls in parental rights as they apply to the LGBTQIA+ community and same-sex couples, practitioners should remind their clients of the importance of second-parent adoption to safeguard parental rights.

Lauren Marciano is an eight-year trial attorney with the Oklahoma law firm of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C. practicing in the areas of commercial, employment and trust and estate litigation. Her achievements in the practice of law have earned her recognition in SuperLawyers Rising Stars and Best Lawyers: Ones to Watch® in America in Insurance Law, Litigation – Trusts and Estates and Product Liability Litigation – Defendants for 2024. She has a particular interest in LGBTQIA+ issues and their crossover in legal disputes.